T. Vaiphei, J.
1. This bunch of writ petitions being inter-connected are disposed of by this common judgment.
2. In this writ petition, the petitioner prays for setting aside the letter dated 2.4.2004 (Annexure-XXIX) issued by the respondent No. 2 for treating B.Ed, in Physical Education as the qualification for the post of Headmaster of Netaji Subhas Vidyaniketan Higher Secondary School, for quashing the tentative seniority list dated 27.11.2001 (Annexure-XV) and for counting his past service in the Mahatma Gandhi Memorial Higher Secondary School for the purpose of seniority.
3. The facts of the case relevant for disposal of this writ petition may be stated. The petitioner was initially appointed on 17.7.1969 as Asstt. Teacher of Mahatma Gandhi Memorial Higher Secondary School, Agartala, which is a privately managed Govt. aided school. His appointment was approved by the respondent No. 2 on 7.10.1969. He was thereafter granted post-graduate pay scale w.e.f. 17.7.1969, which was subsequently enhanced to Rs. 325-775. He obtained B.Ed, degree in the year 1972. Following the change in the pattern of the school education system in 1975, the status of Mahatma Gandhi Memorial Higher Secondary School was reduced to class-X level school while some schools became upgraded to the status of class-XII schools. Netaji Subhas Vidyaniketan was then the only Govt. aided privately managed School which was upgraded to the status of class-XII, i.e., 10(+2) school. In the process of this change, some of the teachers like the petitioner who were serving in class-XI schools were faced with the prospect of loosing their service. On the other hand, some schools like Netaji Subhas Vidyaniketan, which, introduced class-XII system, were found deficient in the number of subject teachers since those schools had recruited teachers for teaching only upto class-XI. Facing imbalance in the teacher-student ratio, the respondent No. 2 by his memorandum dated 17.9.1976 relaxed the earlier memorandum dated 31.1.1976 and allowed the aided schools, management to fill up, with His prior approval, the existing vacancies by approved teachers of sister schools who were likely, to terminate the services of their teachers. The said memorandum provides therein that in such appointments, the service rendered by a teacher under the previous management shall be treated as approved service provided there is no break and that the initial pay in the new school may be fixed on the basis of the last pay drawn by him in his former school in a similar post subject to the other conditions that his pay in his former school was approved by the Directorate of Education.
4. Since the petitioner was obviously facing the prospect of termination of his service at Mahatma Gandhi Memorial School under those circumstances, on the advice of the management of this school, he applied for the post of Asstt. Teacher in Physics at Netaji Subhas Vidyaniketan and, after facing interview, was appointed to that post by the said school on 13.8.1977 w.e.f. 12.8.1977 in the pay scale of Rs. 325-775 as per his last pay certificate issued by the Mahatma Gandhi Memorial Higher Secondary School. His appointment was apparently approved by the respondent No. 2 subsequently.
5. It would appear that the respondent No. 5 obtained M.A. degree in Bengali in the year 1970 and passed B.Ed, in Physical Education examination on 19.8.1970. He was earlier appointed as Physical Instructor of Netaji Subhas Vidyaniketan on 1.3.1969, vide the letter dated 14.2.1969 (Annexure-IV) and his appointment was approved by the Directorate of Education on 15.7.1969 vide the letter dated 15.7.1969 (Annexure-VTI). The service of the respondent No. 5 was confirmed on 21.7.1971 w.e.f. 2.3.1971. After obtaining M.A. degree in Bengali on 25.8.1970, he was allowed to enjoy the benefit of pay scale of Rs. 225-475 w.e.f. 1.10.1970.
6. In the year 1993, the school had published the tentative seniority list dated 29.11.1993 (Annexure-XIV) by which objection was invited from interested persons. In this seniority list, the name of the petitioner was shown at SI. No. 5 while that of the respondent No. 5 was placed at SI. No. 10. It may be noticed that the respondent No. 2 was apparently taking exception to this seniority list as evident from his letter dated 17.4.2001 (Annexure-XX). Accordingly, the school management vide the letter dated 27.11.2001 (Annexure-XU) submitted the impugned tentative seniority list to the respondent No. 2. By this seniority list, the name of the petitioner was pushed down to SI. No. 8 whereas the name of the respondent No. 5 found a place at SI. No. 2. The petitioner is now questioning the validity of the impugned seniority list. According to the petitioner, the past services rendered by him at Mahatma Gandhi Memorial Higher Secondary School as Asstt. Teacher for the period between 17.7.1969 and 12.8.1977 ought to have been counted for the purpose of seniority and if so counted, he is entitled to be placed at SI. No. 2 in the seniority list. It is the case of the petitioner that since the respondent was never appointed as an Assistant Teacher but only as a Physical Instructor, he could never have been clubbed together with post-graduate Asstt. Teacher like him and placed senior to him and other post-graduate Asstt. Teachers in that school.
7. It would further appear that following the retirement of Shri Sushil Debnath from Headmaster-in-Charge on superannuation on 31.3.2003, the petitioner, being a willing and senior teacher, was selected by the management to discharge the function of Headmaster-in-Charge w.e.f. 31.3.2003. Since then the petitioner has been functioning as the Headmaster-in-Charge of the school. Earlier, the respondent No. 4 by his letter dated 26.2.2004 (Annexure-XXIII) had informed the respondent No. 2 about the imminent retirement of the said incumbent and sought clarification from the latter as to whether a post-graduate teacher with B.Ed, in Physical Education was eligible for temporary engagement of Headmaster-in-Charge of a Higher Secondary School. By the letter dated 2.4.2004 (Annexure-XXII) the respondent No. 2 informed the said respondent that B.Ed, in Physical Education was equivalent to B.T./B.Ed. and that one having B.Ed, in Physical Education was qualified to be appointed for the post of Headmaster and directed the respondent No. 4 to make alternative arrangement in terms of the seniority of eligible teachers available in the school. The petitioner submits that both the impugned seniority list and the said clarification of the respondent No. 2 are tailor-made for the respondent No. 5 and if they are acted upon, he feared that the respondent No. 5 would be appointed as the Headmaster-in-Charge and that he would thereby be dislodged from the said post currently held by him.
8. In the counter affidavit of the respondent Nos. 1 and 2, the stand taken by them are that neither the terms and conditions of the appointment of the petitioner as Asstt. Teacher of Netaji Subhas Vidyaniketan nor the memorandum dated 17.9.1976 (Annexure-VIII) provides for counting of his past services rendered at Mahatma Gandhi Memorial Higher Secondary School. According to these respondents, the impugned seniority list was determined in accordance with the well-settled law that in the absence of rules, seniority is determined on the basis of length of service in a post, and, as such, the impugned seniority list is not liable to be interfered with. The petitioner, it is contended, was on the verge of termination from his service but for the benevolent intervention made by the respondent No. 2, he would never have been given alternative employment and by virtue of the memorandum dated 17.8.1976, a new lease of life was given to him. He cannot, it is further contended, steal a march over those teachers who were already appointed to the school prior to his entry into service therein. On the question of the eligibility of Headmaster-in-Charge, it is contended by the respondent Nos. 1 and 2 that the respondent No. 5 is eligible for both the post of Headmaster and Headmaster-in-Charge which is consistent with the reply received from the Tripura University and Kalyani University. The respondent No. 5 also in his counter affidavit, while supporting the contention of the respondent Nos. 1 and 2, in respect of non-counting of the past services of the petitioner, further submits that the circular dated 11.9.1969 issued by the Education Department, West Bengal merely says that post-graduate training examination in Physical Education should not be treated as adequate training qualification for the post of Headmaster/Headmistress in class-XII schools and does not say anything about B.Ed, in Physical Education. It is thus contended that since he has a degree of B.Ed, in Physical Education, which is equivalent to B.Ed, degree, he is well qualified for the post of Headmaster or Headmaster-in-Charge of Netaji Subhas Vidyaniketan. He vehemently denies that the impugned seniority list and the clarification of the respondent No. 2 are made to favour him unduly.
9. After going through the pleadings of both the parties, the points for consideration in this case are formulated, thus:
(1) Whether the past service rendered by the petitioner at Mahatma Gandhi Memorial Higher Secondary School can be counted for determination of his seniority in the new school?
(2) Whether Bachelor of Education in Physical Education can be treated as the equivalent qualification of B.T/B.Ed. for the purpose of appointment to the post of Headmaster/Headmaster-in-charge of Netaji Subhas Vidyaniketan Higher Secondary School?
10. Point No. 1:
There is no dispute at the bar that the petitioner was appointed to the post of Post-Graduate Assistant Teacher of Netaji Subhas Vidyaniketan with effect from 13.8.1977 and that he was earlier serving as Assistant Teacher of Mahatma Gandhi Memorial Higher Secondary School for the period commencing from 17.7.1969 to 12.8.1977. The law for determination of seniority is by now well settled and needs no reference to decided cases. The normal rule for fixing seniority in a cadre is the length of service. In the absence of any statutory rules or executive instructions to the contrary, inter se seniority among employees has to be fixed on the basis of continuous length of service in the said post. No appointment can be ante-dated retrospectively to the date when the appointee was not even borne on the cadre. Ante-dating of appointment retrospectively and fixation of seniority accordingly will be violative of the right of those employees who are already borne on the cadre. This will offends articles 14 and 16 of the Constitution of India. Drawing my attention to Annexure-VII, Mr. K.N. Bhattacharjee, the learned senior counsel for the petitioner strenuously argues that the petitioner having fulfilled all the terms and conditions made therein, the previous service rendered at his former school ought to have been counted for all purposes including seniority and that the refusal to count his previous service is thus arbitrary and illegal. He also refers to the following factors to buttress his submissions:
(i) He was appointed to the new school on the pay scale of the last pay certificate issued by the former school;
(ii) He was given step-up pay benefit to make him on par with those receiving higher pay due to increment accrued to them on earlier dates.
11. To appreciate the point in controversy, it may be appropriate at this stage to reproduce the contents of Annexure-VIII:
No. F.89(54)-DE/66(L) Government of Tripura Education Directorate. Dated, Agartala, the 17th September, 1976,
It has come to the notice of the Education Directorate that management of certain Non-Government Higher Secondary Schools are facing imbalance in Teacher-pupil ratio. This imbalance, it is understood, has resulted as a consequence of the change in the pattern of the school education system.
It has been decided that the Education Directorate memo of even number dated 31.1.1976 may be relaxed in cases where the management of Non-Government aided school fill up, with the approval of the Education Directorate, existing vacancie(s), if any, by approved teacher of sister schools threatened by termination of service due to imbalance in Teacher-pupil ratio and in that event service rendered by the teacher(s) under previous management shall be treated as approved service provided there is no break and also his initial pay in the new school may be fixed on the basis of last pay drawn by him in his former school in similar posts provided also that his pay in the former school was approved by the Education Directorate.
Sd/- K.P. Datta,
(K.P. Datta)
Directorate of Education,
Tripura,
12. On careful examination of Annexure-VII, it becomes clear that the memorandum merely says that the service rendered by teacher(s) under previous management shall be treated as approved service and does not mention anything about counting of the past service rendered by the petitioner for the purpose of seniority. It must be remembered that counting of past service for the purpose of seniority cannot be easily implied or inferred for the simple reason that such benefit will necessarily affect the rights and seniority of the employees, who are already in the cadre, Therefore, in my considered view, the previous service of those employees who are inducted into a different institution by appointment or otherwise cannot be counted unless the terms and conditions of such induction expressly makes a provision in that behalf or unless that is permitted by a statutory rules or executive instructions. I am fortified in my view by the decisions of the Apex Court in the State of Punjab and Ors. v. Harnam Singh and Ors., : [1997]1SCR377 , where the Government of Punjab took orver schools from the District Boards and Zilla Parishads with liberty to take over teachers at its discretion, the Apex Court held that in the determination of seniority on the takeover of the institution, the terms of the take-over is decisive and that in such circumstances, in the absence of a contrary provision in the deed of take over, the previous service rendered by the taken-over teachers would not count towards seniority or for any other benefit including pension. Again, in Yogendra Prasad Mandal v. State of Bihar and Ors., : (1999)ILLJ1070SC , where the employees of an autonomous corporation, who were rendered surplus on closure of its projects, were transferred to and absorbed by the Government, it was held by the Apex Court that in the absence of a contrary provision, the High Court rightly rejected the claim of such an absorbed to continuity of his past service with the Corporation and that for the purpose of seniority and other benefit, his service would count only from the date of his appointment under the Government. I have no doubt that the principles laid down by the Apex Court in the above two cases are applicable to the facts of this case. In that view of the matter, I hold that the past service rendered by the petitioner in his former school cannot be computed for the purpose of seniority.
13. Point No. 2:
Mr. K.N. Bhattacharjee, the learned senior counsel for the petitioner next contends that the respondent No. 5, who holds a degree of B.Ed, in Physical Education, is not equivalent to B.Ed, or B.T. for appointment to the post of Headmaster or Headmaster-in-charge of the School. He refers to the circular dated 11.9.1969 issued by the Education Department, West Bengal, wherein it is stated that Post-Graduate training examination in Physical Education cannot be regarded as adequate training qualification for the purpose of recruitment to the post of Headmaster/Headmistress in Class X and XI Schools. He also draws my attention to Section 27 of the Tripura Board of Secondary Education Act, 1973, which provides, among others that all syllabus, courses and status and text books prescribed by the West Bengal Board of Secondary Education and all rules and all matters of school administration followed in Tripura immediately preceding the commencement of these acts shall continue to be followed until other provisions are made under this Act and submits that since no provisions have been made heretofore to this effect, the circular dated 11.9.1969 shall govern the appointment of Headmasters and Headmistresses of the School. He also points out that vide the advertisements dated 30.11.2001 (Annexure-XXIV), dated 5.12.2002 (Annexure-XXV) and dated 8.12.2003 (Annexure-XXVI), the essential qualification for the post of Headmaster in the Higher Secondary School is always B.T./ B.Ed, and not B.Ed, in Physical Education. In that view of the matter, the professional qualification of B.T. or B.Ed., cannot be equated with B.Ed, in Physical Education for the purpose of appointment of Headmaster/Headmaster-in-charge. It is further contended by him that in the B.Ed, course, there is a subject of 'School organization' which is not there for the course of B.Ed, in Physical Education.
14. It is, however, submitted by Mr. T.D. Majumder, the learned Government advocate appearing for the State-respondents that the clarification made by the respondent No. 2. that B.Ed, in Physical Education is equivalent to B.T./B.Ed. is consistent with the views of academic body such as the Tripura University and the Kalyani University as evident from the letter dated 29.3.2004 annexed to Annexure-XXIX to the writ petition and that consequently, the respondent No. 4 is bound to follow the clarification of the respondent No. 2. Mr. A. Ghosh, the learned counsel for the respondent No. 5, in adopting the line of argument of the counsel for the State-respondents, strenuously argues that when expert bodies like the University of Tripura and the University of Kalyani treat the professional qualification of B.Ed, in Physical Education as equivalent to B.T/B.Ed., such views cannot be lightly interfered with by the respondent No. 4 and also by this Court. According to him, the circular dated 11.9.1969 specifically refers to Post-Graduate, training examination in Physical Education, which cannot be equated with B.Ed, in Physical Education, which is the professional qualification held by the respondent No. 5. In that view of the matter, according to the learned counsel, there is absolutely no reason for holding that B.Ed, in Physical Education is not the requisite qualification for the post of Headmaster in the Netaji Subhas Vidyaniketan. He vehemently denies that the clarification was deliberately made by the respondent No. 2 to suit the case of the respondent No. 5 who had once contested the election of Rajlaxmi Nagar Gaon Panchayat in 1994-99 as a candidate supported by the C.P.I(M), who are in power now. He also questions the competency of the respondent No. 4 to judge the equivalency of B.Ed, in Physical Education with B.T./B.Ed.
15. There is no dispute at the bar that the essential qualification for the post of Headmaster of a Higher Secondary School is Post Graduate degree in any subject from any recognised University with at least 45% marks with good academic records with B.T./B.Ed. Whether the professional degree of B.T/B.Ed. and B.Ed, in Physical Education are equivalent qualifications is, thus, the bone of contention between the rival parties herein. It is now well-settled that B.Ed, is not an academic qualification, but a professional qualification. Recruitment to a post should be held strictly in accordance with the terms of the recruitment rules in force. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post. No doubt, it is always open to the State-respondents to evolve a policy of recruitment and to decide the source from which the recruitment is to be made and prescribe the same in the recruitment rules framed by them. In the instant case, though the degree of B.Ed, in Physical Education is not admittedly prescribed as the professional qualification for the post of Headmaster of Higher Secondary Schools, a provision is, however, made in the recruitment rules empowering the State-respondents to determine the equivalence of 'B.T/B.Ed.'. It is obviously on the basis of this enabling provision that the respondent No. 2 has clarified that a degree of B.Ed, in Physical Education is equivalent to 'B.T./B.Ed.'. The question to be determined then is whether there is any infirmity in the decision of the respondent No. 2 in holding that a degree of B.Ed, in Physical Education is equivalent to 'B.T./B.Ed.' for appointment to the post of Headmaster of Netaji Subhas Vidyaniketan Higher Secondary School.
16. It is true that the determination of the aforesaid equivalence by the respondent No. 2 was made on the basis of the opinion of expert academic body such as Tripura University and Kalyani University. There is no quarrel with the proposition of law that the views taken by expert bodies on a particular subject cannot be lightly interfered with unless the same can be said to be perverse or irrational. But then, the question is whether the determination of equivalent qualification can be a matter which can be decided in a given case in a particular institution when it is an admitted position that the concerned recruitment rules are commonly applicable at least to all Govt. aided Higher Secondary Schools For example, the respondent No. 2 cannot hold that a degree of 'B.Ed, in Physical Education' is equivalent to 'B.T./B.Ed' for the purpose of appointment of Headmaster of Netaji Subhas Vidyaniketan and not for other Higher Secondary Schools. The State-respondents cannot obviously indulge in ad hocism or determine the equivalence of a particular qualification at their whims or caprices.
17. In the Director, AIIMS v. Dr. Nikhil Tendon, : [1996]2SCR856 , the Apex Court held that recognition of a qualification as on equivalent of a particular qualification must be by a general order/proceeding published for the information of all concerned and that it cannot be a matter decided in a given case for the purpose of that case. In the instant case, no general order/published proceeding have been placed before me to show that a degree of 'B.Ed, in Physical Education' is equivalent to B.T./B.Ed. degree. The impugned letter dated 2.4.2004 is not a general order or published proceeding applicable to all Higher Secondary Schools governed by the same recruitment rules. Consequently, I hold that the impugned letter dated 2.4.2004 is arbitrary and is violative of article 14 of the Constitution. It is, however, clarified that the respondent No. 2 is not barred from issuing a general order/ published proceeding for the information of all concerned that a degree of 'B.Ed, in Physical Education' is equivalent to 'B.T./B.Ed.' for appointment to the post of Headmaster of Higher Secondary Schools governed by the same recruitment rules.
18. For the reasons and conclusions stated above, this writ petition stands disposed of as follows:
(I) The petitioner is not entitled to count the past service rendered by him as Asstt. Teacher of Mahatma Gandhi Memorial Higher Secondary School for the purpose of seniority ;
(II) The impugned letter dated 2.4.2004 (Annexure-XXIX) issued by the respondent No. 2 is hereby quashed ;
(III) The respondent No. 5, holding a degree of B.Ed, in Physical Education, is not eligible for appointment to the post of Headmaster or Headmaster-in-charge of Netaji Subhas Vidyaniketan Higher Secondary school;
(IV) The respondent No. 4 shall start the appointment process for the said post in accordance with law and shall complete the same within three months from the date of receipt of this judgment;
(V) Pending completion of the said appointment process, the petitioner shall not be dislodged from the post of Headmaster-in-charge.
This writ petition stands disposed of in the manner indicated above.
W.P.(C)No. 52 of 2000
The interim order dated 9.11.2000 stands merged with this order.
2. In this writ petition, the petitioner No. 2 is the respondent No. 5 in W.P.(C) No. 157 of 2004. The respondent Nos. 1 and 2 by the advertisement dated 16.2.1999 (Annexurs-3) invited applications from in-service employees for the posts of Headmaster and Assistant Headmaster in Netaji Subhas Vidyaniketan (Class-XII School) having the common qualification of M.A/M.Sc./M.Com, serving at least 40% marks or Hons. Degree with good academic records having a B.T./B.Ed./equivalent training but with 7 years teaching experience in High/H.S. School in the case of the post of the Headmaster and 5 years teaching experience in High/H.S. School in the case of Assistant Headmaster. In response to the said advertisement, both the petitioners applied for both the posts. Interview was held on 12.4.1999. The result of the interview was never declared. Hence, this writ petition was filed to direct the respondents to publish the result/select panel of the said interviews.
3. There is no dispute at the bar that the petitioner No. I has already retired from service on superannuation in November 2003. That being the admitted position, no relief can be granted to him now. Therefore, insofar as the petitioner No. 1 is concerned, this writ petition has become infructuous. With respect to the petitioner No. 2, from the counter affidavits of the Managing Committee of Netaji Subhas Vidyaniketan and the State-respondent and also from the rejoinder affidavit filed by the petitioners, the bone of contention between the parties is whether the professional qualification of B.Ed, in Physical Education is equivalent to B.T./B.Ed It may be stated that the petitioner has the qualification of M.A. degree and a degree of B.Ed, in Physical Education. The State-respondents took the stand that B.Ed, in Physical Education is equivalent to. B.T./B.Ed and, as such,' the petitioner No. 2 is eligible for the advertised posts. It is, however, the case of the Managing Committee of the School that B.Ed, in Physical Education is not equivalent to B.T./B.Ed degree and the petitioner No. 1 is not eligible for either of the posts advertised.
4. Having held by this court in its order passed today in W.P.(C) No. 157 of 2004 that B.Ed, in Physical Education is not equivalent to B.T./B.Ed. for the posts of Headmaster and Assistant Headmaster of Higher Secondary Schools, I hold that the petitioner No. 2 is not qualified for appointment to the post of Headmaster or Assistant Headmaster in Netaji Subhas Vidhyaniketan. In that view of the matter, this writ petition has no merit and is, accordingly, dismissed. However, on the facts and circumstances of this case, there shall be no order as to cost.
W.P.(C) No. 532 of 2001
In this writ petition, the petitioner prays for the following reliefs:
(i) to quash the letter dated 17.4.2001 (Annexure-11) issued by the Director of School Education, the respondent No. 2, for not counting of his past services rendered in Pragati Vidya Bhawan as Post Graduate Assistant Teacher for the purpose of determining his seniority; and
(ii) a direction for counting his past services referred to above for the purpose of determining his seniority in Netaji Subhas Vidhyaniketan.
2. During the pendency of this writ petition, the petitioner has retired from service on superannuation on 31.3.2003. There is no dispute between the parties on this development. On the basis of the reliefs claimed as reproduced above, this writ petition does not obviously survive for consideration. Accordingly, this writ petition is hereby dismissed as infructuous. No order as to costs.
.